Question
Four weeks ago, we borrowed someone's apartment for Shabbos. That Shabbos, shrapnel from an Iranian missile crashed into the apartment, damaging the apartment and much of the furniture. The owner of the apartment claims that I am responsible for his loss since I had the status of a sho'eil since I got to use the apartment and its content for free. Is he correct? I should note that the government reimburses those who suffer damage from enemy action. Does that affect my liability?
Answer
In the previous article we saw two reasons why you are not liable even for the movable items that were damaged during the Shabbos that you borrowed the apartment with its contents, even though you had the legal status of a sho'eil.
One reason you are not liable is because the damage would have occurred even if you had not borrowed the apartment. This reason is based on the Ramo's understanding of a decision of the Maharam. We saw that this reason is controversial. The Nesivos, among others, disagrees because a borrower is liable for the death of a borrowed animal even though the animal would have died even if it had not been borrowed. However, we saw that there are answers to the question of the Nesivos.
A second reason you are not liable is because you did not make a kinyan on the movable objects that you were not going to use. You and the owner were joint owners of the apartment and the law (BB 84B) is that a joint owner cannot use the jointly-owned property to make a kinyan of chotseir to acquire an object from the other joint owner of the chotseir.
Furthermore, even if we rule that you are a shomeir on these objects by virtue of the fact that the owner left his house under your guardianship (as held by the Rosh and others whose position is cited by SA (291, 2)) and therefore, do not require a formal act of kinyan, nevertheless as the Pischei Choshen (2, note 49) rules you would only have the status of a shomeir chinom. Since a shomeir chinom is not liable for damages that he could not prevent you would not be liable for these objects.
Concerning the objects that you used, once you began using them you had the status of a sho'eil since the Nesivos (340, 8) proves that use of a borrowed object constitutes a kinyan on the borrowed object. However, even on these objects, if they were damaged before you actually began using them, your liability is questionable since it is controversial if you had already made a kinyan on them by that time. The reason is because 1-you didn't have the kinyan of use.2-as we mentioned, chotseir is problematic and 3-the kinyan of agav is also controversial (See Ketsos 202, 1) since you only borrowed the house and did not acquire or rent it.
An additional reason to free you totally from any liability, even from the goods that you actually used, is that perhaps the damages are considered mmm-meiso machmas melocho and as we saw previously even though a sho'eil is liable for damages for which he is totally blameless, nevertheless he is not liable for mmm. To understand why the damages may be classified mmm it is important to bear in mind that according to the Ramban the reason the borrower is exonerated from mmm is because the owner at least shares in the blame for the loss and the Rashbo gives a similar reason.
The basis for classifying the damages suffered by the movable objects as mmm is a ruling of the Rama that is cited by the Tur (CM 340). The Rama deduces from the Gemoro that if a person borrowed an animal to travel on a specified route and the animal was stolen or damaged by wild animals on the approved path, the loss is classified as mmm since the damages occurred on the animal's trip on the route that was approved by its owner. The rationale for classifying the loss as mmm is because by giving his approval for the animal's itinerary, the owner is partly to blame the loss.
In your situation, the damages were suffered because of the location of the movable items. The one who placed them in their locations and wanted them to remain where he had placed them was the lender and not you. Therefore, according to the Rama you are not liable since there is no difference between the owner's approval of his animal's trip and his approval to leave the property where it was situated. In both cases the location of the property was approved by its owner and the item's location is a key factor in the damages to the property.
Based on the above, we seem to have two distinct reasons for exonerating you from payment of damages: one because the owner did not suffer a greater loss due the borrower's use and another (which we are discussing now) because the owner's approval of his property's position is classified as mmm. However, the Gro (340, 3) writes that when the Ramo ruled that the one who used the owner's collateral to secure a loan is not liable, it is because of this Rama. He is not liable because the placement of the collateral was a decision of its owner and not of the person who used the owner's collateral. Thus, according to the Gro, the two reasons we gave are really one, namely the reasoning of the Rama.
We note that if one understands the Ramo's ruling as being based on this Rama, the question of the Nesivos is answered. The reason B is not liable for the loss of A's collateral is not because the loss would have happened even if B had not used the collateral, but because B did not place A's collateral with A's lender (where it was destroyed) since it was placed there by A.
Moreover, it is clear from the Gro's comment that he agrees with the Nesivos that one cannot free B from liability because the loss would have happened anyway since the Gro writes that those who disagree with the Rama (like the Shach) disagree with the ruling that B has no liability for the loss of A's collateral.
An additional reason to free you from liability is that the owner of the house will receive compensation from the government. While the issue of whether one who is a shomeir on an object is liable if the object was insured is the subject of a major dispute (See e.g., Pischei Choshen (8, footnote 55)), in your case all agree that the owner cannot collect from both you and the government. The reason is because the government wants to compensate those who suffer from the enemy action. Therefore, if the owner of the house collects from you for his loss, you and not he would be entitled to the governmental compensation since then you and not he suffered a loss.
In conclusion: For a number of reasons, you don't have to pay anything for the damage to the owner of the house that you borrowed.
